Free Motion to Supplement - District Court of Colorado - Colorado

Case 1:04-cv-01263-REB-KLM

Document 44

Filed 12/22/2005

Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv- 1263- PSF- OES
ROBERT M. FRIEDLAND

Plaintiff

TIC - THE INDUSTRIAL COMPANY and GEOSYNTEC CONSULTANTS , INC. flk/a GEOSERVICES , INC.

Defendants.
MOTION TO SUPPLEMENT DEFENDANT GEOSYNTEC' MOTION FOR SUMMARY JUDGMENT

Defendant GeoSyntec Consultants Inc. , formerly GeoServices , Inc.

("GeoSyntec ), moves the Court to accept the arguments and deposition testimony set
forth herein as a supplement to its Motion for Summary Judgment in this matter , and in
support thereof , states as follows:

Rule 7. 1 Certification
Undersigned counsel certifies that she has had conferred with Plaintiff's counsel

regarding the relief requested in this Motion. Plaintiff's counsel stated that he does not
oppose this Motion.

Plaintiff Robert Friedland ("Friedland" ), the former president of Summitville

Consolidated Mining Company, Inc. ("SCMCI" ), brought this action to recover

contribution for amounts paid to resolve a cost recovery action brought against him by
the United States and the State of Colorado in 1996 (the " EPA Action

Case 1:04-cv-01263-REB-KLM

Document 44

Filed 12/22/2005

Page 2 of 9

In the EPA Action , Friedland asserted third- party claims against all of the

major contractors who worked at the Summitville Mine (the " Mine ) while SCMCI owned

and operated the Mine between 1984 and 1992. Through extensive discovery, the
parties in the EPA Action examined the roles of all contractors who worked at the Mine

to determine which (if any) might have contributed to the environmental disaster that
occurred on Friedland' s watch. This scrutiny included GeoSyntec , which for

approximately two years , was engaged as a subcontractor to an engineering consultant
at the Mine.

Over the four years in which the EPA Action was pending, over sixty depositions were taken and millions of pages of documents were produced , most of which have been maintained and stored by Friedland' s counsel. In addition to the EPA

Action , relevant testimony and documents were generated in an action brought by
SCMCI against Klahn Leonoff Consultants , which acted as SCMCI' s engineering

contractor , and GeoSyntec in 1988. Friedland' s counsel maintained documents from
that action as well.

Although he made no attempt to assert claims against GeoSyntec in the

EPA Action , Friedland now seeks contribution from GeoSyntec as an " operator" or

arranger" under CERCLA , as defined in 42 U. C. ~ 9607(a). (Am. CampI. ~~ 26 43.
On November 18 , 2005 , GeoSyntec filed a Motion for Summary Judgment ,

arguing that

Friedland' s claims are barred by the doctrine of

res judicata.

(Mot. for Summ. J. at

15- 19. ) GeoSyntec also argued that based on undisputed facts , it did not possess the

requisite control at the Site to render it liable. (kL...at 20- 29.

Case 1:04-cv-01263-REB-KLM

Document 44

Filed 12/22/2005

Page 3 of 9

As set forth in its Motion , GeoSyntec was engaged as a subcontractor to

Klahn Leonoff Engineers to provide quality assurance work for the geomembrane liner

to be placed at the Summitville heap leach project. (Mot. for Summ. J. at 7. )

In

performing this service , GeoSyntec s role was to observe , monitor , inspect and record
the fabrication ,

procurement , delivery, deployment and testing of the geomembrane

liner for the leach pad. (kL at 9. ) Upon inspection , GeoSyntec either approved
particular sections of liner or marked them for repair. (Fluet Aft. , Ex. A- 7 to Mot. for
Summ. J. ~ 13. ) However , as documented in its final reports , there were many portions

of liner that GeoSyntec was unable to inspect or that SCMCI chose to approve on its

own , and many repair and installation activities it was unable to monitor. (kL at

~~ 11- 14; Mot. for Summ. J. at 12- 14.
In order to be liable as an " operator " a person must " manage , direct , or

conduct operations specifically related to pollution.
s. 51

United States v. Bestfoods 524

, 66- 67 (1998). In applying this standard , the key issue is the degree of control
Id.
see

the person is able to exert over the activity causing the pollution.

also CPC Int'l,

Inc. v. Aerojet- General

Corp.

731 F. Supp. 783 , 788 (W. D. Mich. 1989). In this case

Friedland apparently contends that GeoSyntec s actions in monitoring, inspecting and approving certain portions of the geomembrane liner installation constituted " control"

over that process. However , that position is refuted not only by the undisputed facts set
forth in GeoSyntec s Motion , but by additional compelling deposition testimony taken in
the EPA Action , recently discovered by GeoSyntec.

Case 1:04-cv-01263-REB-KLM

Document 44

Filed 12/22/2005

Page 4 of 9

In the EPA Action , Friedland asserted a third- party claim against Columbia

Geosystems , Ltd. ("Columbia ), the contractor that installed the geomembrane liner.
(Am. Third- Party CampI. , Ex. A- 3 to Mot. for Summ. J. at ~~ 92- 98. ) On January 19

2000 , Friedland' s counsel in the EPA Action took the deposition of Neil McLeod , the
President of Columbia during

its work at the Mine. (Excerpts from Deposition of Neil
Exhibit Aat 11 :8-

McLeod dated 1/19/00 , attached hereto as

21.

In his deposition , Mr. McLeod testified to GeoSyntec s limited role at the

Mine , as follows:

GeoServices (was) there to monitor and inspect our work , test it , keep records , things like that."
(kL at 127: 13- 22.

Mr. McLeod also testified to GeoSyntec s lack of control over Columbia
work:

As far as the functions that you described GeoServices performed what was the extent of their authority?"
They were the policemen.

Could they direct your personnel to install liner or not install liner?"

No. They would basically say you either have this liner or seam or
patch approved , or it' s not approved.

Did they have the authority to stop work?"
I really don t know.

(kL at 129:20- 130:5.
10.

Most importantly, Mr. McLeod -

the President of the

company whose liner

installation work GeoSyntec allegedly " controlled" - testified:

Case 1:04-cv-01263-REB-KLM

Document 44

Filed 12/22/2005

Page 5 of 9

That may be what it is. I' m just asking what your position is or what your knowledge was of GeoServices ' review and inspection of
the operations.

I guess it' s a matter of semantics because , to my knowledge they were never in control of the operation. It wasn t their

mandate.
(kL at 158:2- 7 (emphasis added).
It is difficult to imagine a witness more qualified than

Mr. McLeod to testify regarding GeoSyntec s control , or lack thereof , over the liner

installation process. Based on this testimony, taken by his own attorney, Friedland'
decision not to sue GeoSyntec in the EPA Action is understandable. Conversely, his
decision to bring his current claims against GeoSyntec is inexplicable.
11.

Friedland' s counsel also deposed David Loucks , an engineer who worked

for Columbia at the Mine during the relevant time period. Mr. Loucks gave similar

testimony regarding GeoSyntec s relationship to Columbia:
Would GeoServices have provided instructions to Columbia as to

the arrangement of the liner panels on the heap leach pad?"
We received instructions as to where ICC was going to lay the liner. In some instances , we probably made some suggestions as to the most efficient way to lay those in terms of minimizing welds. GeoServices typically was monitoring the way that the - the finished product as opposed to giving directions as to how the liner panels would be laid.

(Exc. from Dep. of David Loucks dated 1/20/00 , attached hereto as

Exhibit A-

10:12- 11:6; 30:5- 14.
12.

Mr. Loucks also testified to concerns shared by both GeoSyntec and

Columbia about the inadequacy of the anchor trenches securing the liner , a condition

which neither he nor Laurin Drake of GeoSyntec had any power to remedy:

Case 1:04-cv-01263-REB-KLM

Document 44

Filed 12/22/2005

Page 6 of 9

Are you aware of any concern about the quality of the backfilling of

the anchor trenches?"

Yes. There was an area of the leach pad that had been lined and
partially backfilled in the anchor trenches , and it was indicated to me by Laurin Drake at GeoServices that that area of the anchor trench would not be backfilled until the spring thaw , after we were gone , due to (SCMCI' s) concerns with frozen backfill. And we neither Laurin nor I were happy about that."
(kL at

99:23- 100:6.
13.

Mr. Loucks also recognized the limitations on GeoSyntec s ability to

monitor the liner installation and repair , due to its limited personnel on site:
How many inspectors did GeoServices have on site each day?"

One while I was there.
(kL at

79:25- 80:2.
But GeoServices was not able to observe - physically observe all of the vacuum testing conducted by ICC?"
, it would have been impossible for them to have - with one person , to have physically visually observed every test."

(kL at 148: 14- 19).

As discussed in the Motion , Klahn Leonoff only authorized

GeoSyntec to employ one quality assurance monitor at a time at the Mine. (Fluet. Aff.
Ex. A- 7 to Mot. for Summ. J. ~ 11.
14.

Finally, Mr. Loucks testified regarding the chain of communication and

command for Columbia s work at the site , to the extent GeoSyntec gave directions to

Columbia:

To your recollection , who did GeoServices receive their
instructions from?"
Klahn Leonoff."

Case 1:04-cv-01263-REB-KLM

Document 44

Filed 12/22/2005

Page 7 of 9

Anyone else?"
Yeah , they probably received directions from (SCMCI).
(Id. at 147:7- 12.
15.

Clearly, GeoSyntec was not in " control" of the liner installation or repair

process at the Mine. To the contrary, GeoSyntec followed the instructions it was given
by Klahn Leonoff ,

who engaged GeoSyntec as its subcontractor , and by SCMCI.

GeoSyntec worked under many limitations imposed by these entities , whether they
pertained to allowing only one inspector on site at a time , diverting labor from liner

testing operations , or proceeding in inclement weather against GeoSyntec s advice.
(See Mot. for Summ. J. at 9- 12.
16.

Because this additional testimony is directly relevant to its Motion

GeoSyntec respectfully submits the foregoing deposition testimony and argument as a
supplement to its Motion.

WHEREFORE , Defendant GeoSyntec Consultants , Inc. respectfully requests
that the Court accept the foregoing in supplementation of its Motion for Summary
Judgment in this matter.

Case 1:04-cv-01263-REB-KLM

Document 44

Filed 12/22/2005

Page 8 of 9

Respectfully submitted this 22st day of December , 2005.

sl

Marian L. Carlson Marian L. Carlson
Terence M. Ridley
Wheeler Trigg Kennedy

LLP

1801 California Street , Suite 3600

Denver, CO 80202- 2617
Telephone No. : 303-292-2525
Telecopier No. : 303- 294- 1879

Mail: carlson~wtklaw. com
Paul J. Sanner

Hanson ,
LLP

Bridgett ,

Marcus , Vlahos & Rudy

333 Market Street , Suite 2100 San Francisco , CA 94105- 2122 Telephone No. : 415- 995- 0517 T elecopier No. : 415- 541- 9366 Mail: psanner~hansonbridgett. com
Attorneys for Defendant GeoSyntec Consultants , Inc

()
Case 1:04-cv-01263-REB-KLM Document 44 Filed 12/22/2005 Page 9 of 9

CERTIFICATE OF SERVICE
I hereby certify that on December 22 , 2005 , I electronically filed the foregoing

Motion to Supplement GeoSyntec s Motion Summary Judgment with the Clerk of Court

using the CMIECF system which will send notification of such filing to the following
email addresses:
Colin Christopher Deihl

cdeihl~faegre. com jsullivan~faegre. com
Michael Stephen Freeman mfreeman~faegre. com cdaniels~faegre. com dcopeland~faegre. com

Richard Kirk Mueller rmueller~fognanilaw. com cvega~fognanilaw. com
Terence M. Ridley ridley~wtklaw. com norris~wtklaw. com

Steven Matthew Kelso kelso~wtklaw. com hand~wtklaw. com

Marian Lee Carlson carlson~wtklaw. com carpenter~wtklaw. com

and I hereby certify that a copy of the document has been served to the following nonCMIECF participant in the manner indicated by the non- participant' s name:
Paul J. Sanner Hanson , Bridgett , Marcus , Vlahos & Rudy, 333 Market Street , #2100 San Francisco , CA 94105- 2122
( ) First

LLP

Class Mail Hand Delivery

( ) Facsimile

Overnight Delivery (X) E- Mail

sl

Marian L. Carlson by Cindy Carpenter

Marian L. Carlson
Wheeler Trigg Kennedy

LLP

1801 California Street , Suite 3600 Denver, CO 80202- 2617 Telephone No. : 303-292-2525 Telecopier No. : 303- 294- 1879 Mail: carlson~wtklaw. com

Attorney for Defendant GeoSyntec Consultants , Inc.